Romney’s Divisive Judicial Advisor: Robert Bork

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Four Supreme Court justices are in their 70s and the possibility that the next president may nominate their successors should be a significant issue in this year’s campaign. With the court so evenly divided along partisan lines, the president who gets to replace a justice from the opposite side could determine the future of the court for decades to come. So Mitt Romney’s choice of Robert Bork as a chairman of his Judicial Advisory Committee earlier this year raised more than a few eyebrows. In an editorial, The New York Times has called Bork one of “the most divisive figures in American law” and his role in Romney’s campaign as “disturbing.”

You might recall the last time Bork was in the national spotlight. It was 1987. Supreme Court Justice Lewis Powell, Jr., a judicial moderate (and author of the Powell Memo), was retiring, and President Reagan chose Bork as his replacement. The nomination was controversial from the start.

Robert Bork testifies before the Senate Judiciary Committee in 1973 as Acting Attorney General. (AP Photo/Bob Daugherty)

Robert Bork testifies before the Senate Judiciary Committee in 1973 as Acting Attorney General. (AP Photo/Bob Daugherty)

At the time, Bork was best known for his role in the “Saturday Night Massacre” at the height of the Watergate scandal. Special prosecutor Archibald Cox had threatened to seek a court order forcing President Nixon to provide copies of nine tape recordings of conversations in the Oval Office. Nixon refused, and ordered Attorney General Elliot Richardson to dismiss Cox. Instead, Richardson resigned in protest. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox, but Ruckelshaus also resigned.

Third in line was the Solicitor General: Robert Bork. Bork later said that when the president approached him with the order to fire Cox, he too considered resigning. But instead, he was sworn in as acting attorney general and fired Cox.

Along with Supreme Court Justices Scalia and Thomas, Bork is an advocate of “originalism,” a philosophy that holds judges to what’s believed to be the constitutional framers’ original intent. Over the last few decades, originalism has increasingly clashed with the prevailing idea amongst justices that the Constitution is an organic, evolving document. Originalism often results in extreme conservatism – as David A. Love argued in The Grio:

“In a nation that once rendered black people three-fifths of a person, and allowed only white male landowners to vote, original intent poses a problem for some.”

Originalism often put Bork on the unpopular side of cultural debates: He opposed the Civil Rights Act of 1964, the Roe v. Wade decision and applying the first amendment to anything other than political speech.

Both Bork’s role in the Saturday Night Massacre and his philosophy of originalism came under fire when Reagan nominated Bork to the Supreme Court. On the first day of confirmation hearings, Senator Ted Kennedy gave a speech describing an America governed by Bork’s legal philosophies.

Later that same day, in a nine-minute statement, Bork described his legal philosophy.

But Kennedy’s speech was the one America remembered.

“There was not a line in that speech that was accurate,” Bork later claimed. But the speech worked. The Senate rejected Bork — by the widest margin in history — and the seat went instead to Judge Anthony Kennedy (no relation to Ted Kennedy). As the Times noted, “The right wing has always claimed Mr. Bork’s defeat was entirely partisan. In fact, it has made a verb out of his confirmation battle. To be borked is to be destroyed by whatever means it takes, and his confirmation struggle was, therefore, not about the substance of his legal views.”

Bork has been an advisor to Romney since 2007. Speaking of Bork at a town hall that year, Romney said, “I wish he were already on the Supreme Court. He’s the kind of brilliant conservative mind that this court could use.”

Moyers & Company guest Jamie Raskin writes in the People for the American Way’s Borking America report that “[b]y naming Bork as a lead advisor on the law and the courts, Romney has shown that his approach to the Constitution is entirely political, partisan and right-wing. The Roberts Court has already gone to great lengths to remove constraints on corporate power throughout American life, and Robert Bork proposes to make things much worse.”

A Gallup Poll conducted this summer found approval for the Court at near-historic lows. With four justices nearing retirement, it seems likely that the next president — and his advisors — may determine the balance of the Court for years to come. So in November, Americans should remember that a vote for Romney or Obama may also be a vote for Justice Ginsberg’s or Breyer’s replacement. The future of the one percent Court is in our hands.

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  • Joseph Glackin

    Romney counts among his advisers Robert Bork and John Bolton. That is all one needs to know about his “vision” for America.

  • John

    Robert Bork should be banned from any kind of Goverment Service due to his firing of Archibald Cox and interfering in the Watergate Investigation.

  • John Aller

    That is the confusing part. These Conservatives CLAIM they want to go back to originalism, but they also want to give the power to the corporations. There is a big conflict of ideals, but they lie to us that they are the same.

  • unkerjay

    If Romney is going to go with Robert Bork as his judicial advisory committee chairman, might I recommend either Michelle Bachmann or Sarah Palin as his Public Relations manager. Excellent choices either way.

  • Ted Lawrence

    Everythng in here is correct about his political views, but you lose the impact by being unfair about his role in the Saturday Night massacre. Anything fair would have mentioned that Elliot Richardson who had resigned and Bill Ruckelshaus who was also fired urged him to do the deed because it was important to keep a professional in the job while Nixon was President. Cox also later said that Bork did the right thing and that he knew he was being told by several of his supporters to take the job. He is an ultra right winger politically (which most believe stems from his time at San Francisco State during the riots there) but in firing Cox, he did what most people thought was the right thing to make sure Nixon didn’t do any more damage.The reason he was different from Ruckelshaus was that Ruckelshaus had worked directly with Cox on his Watergate report and wanted to make sure it was clear that no one disagreed with his decision while Bork was technically an outsider.

  • Georga Grivois

    Pray we need not have Mitt Romney in a position to make ANY decisions that would affect us all!

  • Georga Grivois

    Don’t forget Dick Cheney as his Sec Def!

  • Laure Olson

    Bork fits right in now.

  • Tom Youngjohn

    I’m also concerned about Bork, but not with “originalism”. For example, the Framers of the Constitution knew about “corporations” that existed at the time of the drafting of the Constitution, but left them out of it. When a testator dies, and leaves a presumed heir out of his or her will, this is called “pretermission.” I believe that “originalism” requires the Court to address the fact that the Framers pretermitted corporations from their gift to us, their will, our Constitution. Similarly, the 14th Amendment, which has been interpreted to extend Constitutional rights to corporations,, does not mention Corporations. The political left would be wise to embrace Originalism. Doing so would allow Justices to let legislators pass campaign spending laws, like the law that prevented corporate spending in Montana passed in 1912. In all seriousness, I’d be honored to be called an original.

  • Greg Wetzel

    The sad truth is even if President Obama wins the election and has the opportunity to pick a replacement for Ginsberg and Breyer he will likely only pick slightly more liberal justices than what Rommey would have picked. President Obama does not have a goal to move the Supreme court much to the left or to take any actions that would make one see him as a liberal president. President Obama is also a conservative politician. To balance things out with the court President Obama would need two justices that would be very liberal. President Obama has not shown us support for liberal views with his presidency so far. Thus, I do not see President Obama picking a Supreme court justices that would be for the poor, homeless, students, elderly, and average folks in any shape. On the other hand, If Rommey manages to buy and steal enough votes to take the election, than the Supreme court will be pushed to the ultra conservative direction for the next 30 years. It simply will not take much to push the Supreme court in the ultra conservative direction because of the Bush presidencies. No matter who wins the election the Supreme Court will still be more conservative. Just one is less evil than the other.

  • Juliana L’Heureux

    With all the law graduates out there to choose from why does Governor Romney go to a lightening rod like Judge Bork? He could easily have recruited someone fresh not so polarizing. Another leadership gaffe among so many in the Romney political playbook.

  • jim

    Has ANYONE noted that ROMNEY has and is choosing people who were the failed advisers of the BUSH era? Romney is neither original, a free thinker or a business person. He is a yes person to the money that is behind him who makes up most of what he says depending on the group of people he is addressing at the moment. He should fail just by the way he runs his organization and the people he has chosen to be on his team….finally you and I could run Bain…all one needs is the ability/means to borrow lots of money….nothing created by Bain…just money making money.

  • WOW

    America’s past feats of strength and success are a direct result of its unparalleled protections and inclusions of We the People.
    If this man reaches our highest court, We the People and our nation’s future will be borked.